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A project of the People's legal Front
In the United States District Court for
For the Western District of Missouri - Southern Division
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Plaintiff, Vs City of Springfield, et al Defendants, |
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Case No: 98-3486-CV-S-SOW |
Plaintiff's Suggestions in Reply to
Defendants' Response to
Plaintiff's Motion for Partial Summary Judgement
COMES NOW, Plaintiff Marc Perkel, in reply to defendants' Suggestions in Opposition and Response to Plaintiff's Motion for Partial Summary Judgement. The plaintiff has already outlined his argument in his brief he files with his Motion for Partial Summary Judgement and will briefly respond to arguments that the defendants have made in opposition.
Illegal Arrest
The facts are barely in dispute with regard to the arrest. The only factual issue that might be relevant that's fuzzy is if or how far the screen door was cracked open after the plaintiff responded to the arresting officers knock and announcement of arrest. For the purpose of partial summary judgement, the plaintiff will adopt the defendants' version of the facts and argue the issues of law, which are in dispute. For the purpose of this motion the plaintiff will assume probable cause existed.
Most of the issues raised by the defendants are not relevant. Probable cause is not relevant if the arrest was a home arrest without a warrant. Missouri Statute 544.216 does not apply to warrantless home arrests. The facts surrounding the trespassing don't matter. Neither does the plaintiff's sexual conduct or his political views about the legalization of prostitution. It seems to the plaintiff that the only relevant point of contention is a matter of law as to whether the plaintiff's arrest was a home arrest or a public arrest. The only question before this court is if the arrest was a home arrest or a public arrest.
The cases the defendants cited do not apply to these facts. There was no "hot pursuit" as in the Santana case and probable cause only applies to public arrests. The plaintiff makes no argument as to whether or not the arresting officers had probable cause. If they did have probable cause they should have taken it to a judge to get an arrest warrant. The only real issue here isn't a dispute over the facts but a dispute of law over whether or not the Plaintiff exposed himself to the public by answering the officer's knock at the door and being summoned out by the officers' show of authority.
It is undisputed that the plaintiff was in the privacy of his home at 10:30pm with his shoes off watching television when the officers knocked on the plaintiff's door. The plaintiff answered the door and the officers determined the plaintiff's identity and announced he was under arrest. The plaintiff submitted to the officers' authority rather than resisting arrest and risking damage to the plaintiff's home or violence upon the plaintiff's person.
The defendant's seem to be asserting that by cracking the screen door and having one arm and/or perhaps one foot out of the door puts the plaintiff into the public. Defendants also assert that the actual arrest occurred on the porch when the plaintiff was handcuffed, and the porch was a public place. The defendants additionally assert that the plaintiff waived his fourth amendment rights by making a public appearance at the door and stepping onto the porch to be handcuffed and taken into custody.
Plaintiff contend that the controlling case is United States Of America V. John Henry Morgan, 743 F.2d 1158, which says:
In this case, we are confronted with the situation where the suspect was arrested as he stood inside his home with drawn weapons. In these circumstances, it is the location of the arrested person, and not the arresting agents, that determines whether an arrest occurs within a home. Otherwise, arresting officers could avoid illegal "entry" into a home simply by remaining outside the doorway and controlling the movements of suspects within through the use of weapons that greatly extend the "reach" of the arresting officers.
United States v. Johnson, 626 F.2d at 757. *fn2 We agree with the Ninth Circuit that the important consideration in this type of case "is the location of the arrested person, and not the arresting agent, that determines whether an arrest occurs within a home."
Applying this rule here, it is undisputed that Morgan was peacefully residing in his mother's home until he was aroused by the police activities occurring outside. Morgan was then compelled to leave the house. Thus, as in Johnson, supra, "it cannot be said that voluntarily exposed himself to a warrantless arrest" by appearing at the door. On the contrary, Morgan appeared at the door only because of the coercive police behavior taking place outside of the house. See Johnson v. United States, 333 U.S. at 13 (police entry to defendant's living quarters "granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right"). Viewed in these terms, the arrest of Morgan occurred while he was present inside a private home. Although there was no direct police entry into the Morgan home prior to Morgan's arrest, the constructive entry accomplished the same thing, namely, the arrest of Morgan. Thus, the warrantless arrest of Morgan, as he stood within the door of a private home, after emerging in response to coercive police conduct, violated Morgan's fourth amendment rights. A contrary rule would undermine the constitutional precepts emphasized in Payton. See United States v. McCool, 526 F. Supp. 1206, 1209 (M.D. Tenn. 1981) ("to uphold warrantless arrests at a person's home whenever law enforcement officers successfully obtain his presence at a door too readily allows subversion of the Payton principle").
In this case the plaintiff was summoned to the door by a knock. Upon answering the door the plaintiff immediately saw two police officers who were displaying badges and were wearing a variety of weapons. Upon being told that he was under arrest, the plaintiff knew that he was not free to leave and had to submit to the authority of the arresting officers. When officers use coercive behavior to extract a person from their home, they can't claim that the person was in public when he was arrested. The display of badges and weapons and the announcement that the plaintiff was under arrest constitutes constructive entry into the plaintiff's home.
As part of the Internal Affairs Investigation the officers were asked a number of questions about the plaintiff's arrest and their written replies are attached as Defendant's Exhibits I and J. In Defendants Exhibit I Answers 1,3, and 4, Officer Holle makes the issue of the home arrest clear. In answer #4 Officer Holle states, "No, I arrested PERKEL inside his home". The plaintiff contends this answer speaks for itself.
Additionally, Officer Holle, in his sworn affidavit [Attached to Defendant Holle Response to Partial Summary Judgement, Defendant's Exhibit 1, Statement #8] admits that he went to the plaintiff's home to arrest him on the charge of trespassing. Clearly the decision to arrest the plaintiff had already occurred before officer Holle ever arrived at the plaintiff's door. The plaintiff contends that he was already arrested before the officers knocked on the door because the Springfield Police Department, the moment the arresting officers walked onto the plaintiff's property, already seized him.
The proper method of arresting a person, such as the plaintiff, would have been for the officers to have taken the complaint to the judge and to ask the judge to issue and arrest warrant. They went to the county prosecutor to try to get them to file charges against the plaintiff and he turned them down. After they were turned down, they took the law into their own hands. In the case of Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732, 52 U.S.L.W. 4581 the Supreme Court decided that, "When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant." If we allow these officers to make home arrests without a warrant, then why should any officer ever get a warrant to make a home arrest?
If a person is sitting in his home at night watching television and the police come to the door to arrest him, if that isn't a home arrest then what is a home arrest? Should the plaintiff have slammed the door in the officer's face and waited till he broke the door down to come in? Should the plaintiff be required to display violent resistance to assert his rights? That kind of decision would put the police in danger. If this arrest was legal then we should just take a marking pen and cross out the fourth amendment and not pretend that a person has a right to be secure in the privacy of his home.
What happens if we allow the police to usurp the roles of prosecutor, judge, and jury? We could just eliminate due process of law, trials, and sentencing. Why bother to have prosecutors, warrants, judges, and courthouses when the police can just take care of it all themselves? It surely would be efficient and cost effective.
Perhaps the plaintiff deserved to be arrested. After all, as the arresting officers' attorney points out in the attached deposition excerpts that the plaintiff has the sexual morals of the average male dog. However, in the case of Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639, the United Stated Supreme Court upheld that a murderer had the right, under the fourth amendment, to be secure in his home from a warrantless arrest. And most of the country, with the possible exception of Springfield Missouri, consider murder to be a far more serious crime than paying for sex outside of the context of marriage. The plaintiff therefore asks this court to affirm his rights under the fourth amendment of the constitution.
Illegal Protective Sweep
If the arrest is illegal then the entry into the home is illegal. If the arrest were legal the plaintiff admits that the officers had the right to follow him into the front room of the house to get his shoes. However, the protective sweep of the rest of the house was not justified. In the Morgan case it was held:
The United States argues no warrant was required because the police conduct constituted a "cursory safety check," which is a recognized exception to the warrant requirement. See United States v. Kolodziej, 706 F.2d 590, 596-97 (5th Cir. 1983) (and cases cited therein). We disagree. To satisfy the cursory safety check exception "the government must show that there was 'a serious and demonstrable potentiality for danger.'" United States v. Kolodzeij, supra, 706 F.2d at 596, quoting United States v. Smith, 515 F.2d 1028, 1031 (5th Cir. 1975) (per curiam), cert. denied, 424 U.S. 917, 96 S. Ct. 1119, 47 L. Ed. 2d 322 (1976). The record in this case reveals no such immediate threat or security risk to the officers involved here. As found by the district court, the evidence "shows that the occupants of the house were peaceful until startled by Officer Alcorn's car coming up their driveway in a clandestine manner." Moreover, Morgan's prior contact with police officials had been friendly and cooperative. There was no substantiated evidence that Morgan was dangerous or that a grave offense or crime of violence had occurred or was even threatened. United States v. Killebrew, 560 F.2d at 734
The burden is on the officers who would have had to assert the affirmative defense of justification and assert specific and articulable facts supporting an assertion that the plaintiff was dangerous; neither of which was done. The officers didn't frisk the plaintiff at the time of the arrest to see if he had any weapons on his person. Therefore the protective sweep was really an illegal warrantless search and a violation of the plaintiff's constitutional rights.
False Imprisonment - Denial of Bail
The defendants make a misleading argument that the plaintiff admitted in his deposition that he was allowed to make bail and call an attorney. He was only allowed to make bail and call an attorney after he spent 10 hours in jail. Plaintiff asks that the court remind the attorneys about misleading arguments.
The attorney for officer Holle indicates that officer Holle asked the plaintiff if he wanted to bond out and the plaintiff replied "no" referencing officer Holle's affidavit which she attached to her motion. The plaintiff has read Officer Holle's affidavit and can find no reference in it or any other document that makes the claim, that Officer Holle made an offer to the plaintiff to bond out. The plaintiff finds it disturbing that the Officer Holle's attorney would quote a non-existent statement. Additionally, the arresting officers were wearing a recording device to record the arrest of the plaintiff and nothing in that transcript indicates such an offer was made.
The defendants do raise an interesting issue. The plaintiff believes that defendants Holle and Shipley were able to make the decision to keep the plaintiff in jail overnight, and that they were the ones that caused it to occur. However, the plaintiff can't prove it at this time. It's clear that someone who works for the city is responsible as well as the city itself. The plaintiff asks the court to make a finding that the imprisonment and denial of bail was improper and assign liability as it sees fit.
Custom and Policy of the City
Plaintiff contends that the case of Webster v. Houston, 735 F.2d 838 is a real good controlling case that explains the standards of holding a city responsible for police misconduct under section 1983. Webster defines a custom or policy of a city as follows:
A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.
The Webster case involved proving that the use of "throw down weapons" were a custom of the police department of Houston Texas after the police were caught planting a gun on a person the police shot. Like Springfield, the official policy was that planting a gun wasn't proper. But the theory and the practice were quite different. Webster established that there was a custom in Houston Texas of the police planting throw down weapons in spite of written policy. They established this in part by the inaction of the superior officers and the lack of disciplinary action against the violators. The Webster case said:
Finally, if the City and the HPD were conscientious about terminating this opprobrious practice, the remedies were readily available. First and most important, the City could have directed the HPD to issue a specific written prohibition of the use or carrying of throw down weapons (or drugs), buttressed by appropriately severe sanctions for violators. It could have instructed the HPD to institute searching, independent investigations of asserted police misconduct and police shootings.*fn51 It could have prohibited any condoning reference by supervisory HPD officers, especially academy instructors, to the possible use of throw down weapons. As additional steps, the City could have directed immediate discharge of anyone found guilty of carrying a "throw down." The City could have ordered the police department to give all police officers a deadline, after which any officer found to be carrying a weapon other than their regular police service revolver would be automatically discharged. This measure could have been facilitated by periodic regular inspections of the officers' automobiles and the kits which they carry. None of these requirements would interfere in the least with proper law enforcement. Finally, the failure to maintain a careful control system in the HPD property room was an invitation to the continuation of the "throw down" custom. This laxity should have been eliminated long ago so that no officer could obtain a thrown down weapon from the property room, as the weapon used in this case was obtained.
In this case the plaintiff filed a complaint with the Internal Affairs Department. Internal Affairs sent a questionnaire to the arresting officers [Attached - Defendant's Exhibit I and J, Question #13] asking in question #13 why the officers failed to get a warrant. The plaintiff contends that officer Holle's response can be fairly interpreted to state that they didn't want the Plaintiff to attend a bond revocation hearing the next day for Mike Slack and that they wanted to teach the plaintiff a lesson about witness tampering. Officer Shipley, in answer to the question about why no warrant, described it as a routine arrest.
In response to these answers, Sgt. Greer, head of Internal Affairs was satisfied and dismissed the Plaintiff's complaint as "unfounded". The plaintiff responded that the facts in the officer's police report admit that the plaintiff was arrested in his home without a warrant constitute a violation. Nonetheless, Internal Affairs stood by their decision. Then the Chief of Police reviewed the record and stated he personally reviewed the facts and he affirmed the conclusion of the Internal Affairs investigation.
The plaintiff then took his cause to the city manager, the prosecutors, and the city council and the mayor and no one took any action when they had a duty to act. Their indifference and inaction affirms the plaintiff's contention that warrantless arrests in the home are a custom of the City of Springfield.
Furthermore, to this date nothing has been done to discipline the officers or to correct them in any way. In fact, the Internal Affairs review affirmed to these officers and any other officer who knows the facts that the Plaintiff's arrest was completely proper and lawful. These officers have been told by their superiors that they did nothing wrong.
Even still, before this court, the City of Springfield, the arresting officers, the Internal Affairs Officer, and the Chief of Police, all assert, through their legal counsel, that the plaintiff's arrest was both proper and lawful. Because they make this assertion, they are estopped from denying that this conduct is officially supported by the City of Springfield and specifically the Internal Affairs Department and the Chief of Police.
Finally, the plaintiff contends that the test of whether or not warrantless home arrests are a custom or policy of the City of Springfield is to ask the question, "If the same facts occurred again, would they produce the same result?" Will this still happen today even after this conduct was exposed and examined? It's clear to the plaintiff that, yes, it would.
Summary
The United States Supreme Court drew a bright line at the entrance of the home in Payton V. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639, stating:
The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. To be arrested in the home involves not only the invasion attendant to all arrests, but also an invasion of the sanctity of the home, which is too substantial an invasion to allow without a warrant, in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is present. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.
Suppose for a moment, Your Honor, that you are visiting Springfield and you are watching television in your room at 10:30pm and you hear a knock at the door and two cops, without any warrant, drag you off to jail for the night. The City of Springfield argues that it is perfectly legal. After all, you exposed yourself to the public by opening the door. When you grabbed that doorknob and pushed open the door you hand crossed the centerline of the doorway and went out in the world of the public. Is that what the court believes the founding fathers had in mind when they added the Bill of Rights to the Constitution? Is that what the Supreme Court decided in Payton v. New York? It gives the plaintiff the creeps that the City is even making that argument.
Your Honor, we have 225,000 people down here in Springfield Missouri whose constitutional right to be secure in their home has been suspended by the City and the Police Department. We the People are all counting on you to affirm the sanctity of our homes and make Springfield Missouri a part of the United States of America again.
WHEREFORE, plaintiff, having adopted as true the defendants set of facts and having proved that he is entitled to partial summary judgement, prays for an order specifying the facts that are without substantial controversy and granting the plaintiff an order of partial summary judgement in his favor.
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Marc Perkel - Plaintiff - 07-06-99
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